A First-Year Associate Reconsiders His Ethical Commitment To Intellectual Property Law

Dear Gary,

My name is Ethan Randall, and I’m a first-year associate at the Andrews, McClellan & Patterson law firm here in Wilmington, Delaware. You may be wondering why I’m contacting you, and I’m kind of wondering that myself, honestly.

It’s like this. As you may remember, your grandmother, Marion Carswell, had her 75th birthday party at her assisted living center in Arizona in February 2009. Your mother, Amanda Wright, was in attendance, and took a video, which she posted to YouTube. (I do not know if you were in attendance, but there is a young man in the video wearing a Colorado State T-shirt, and your LinkedIn profile shows that you graduated from Colorado State, so I’m going to assume that’s you, not that it matters that much.)

In December 2009, another first-year associate from this firm, doing a routine copyright search, viewed the video and noted that the video contained a recording of the song, “Happy Birthday to You.” The copyright to “Happy Birthday to You” belongs to my firm’s client, the Warner Music Group. Under current copyright law, you can’t broadcast clips of people singing “Happy Birthday to You” on TV or the Internet without paying for the rights to do so. That attorney sent your mother an e-mail, asking her to take the birthday party video (hereinafter referred to as “the infringing video”) down.

In March 2011, another first-year associate from this firm noticed that your mother had not responded to the first e-mail. She sent your mother a follow-up e-mail, again asking your mother to take the infringing video off YouTube. Again, there wasn’t a response. The firm was preparing to begin initial work towards legal action on this matter when I investigated the situation and determined that your mother passed away in August 2009, thereby complicating our litigation strategy somewhat.

So first of all, Gary, let me pass along my condolences, and the condolences of the firm, at the loss of your mother. Based on the obituary, it sounds like it was very painful and traumatic for her, and probably for you. It can’t have been easy watching her suffer like that. It’s a sad thing, and I’m sorry it happened, and the note you wrote about her on Facebook at the time was very moving.

However, and this isn’t easy for me to write, the fact that your mother is dead doesn’t change our position regarding the copyright infringement of the video made at your Nana’s birthday in 2009. (I am glad to hear that she seems to be doing well and has recovered from that mini-stroke.) Therefore, on behalf of my law firm, and the Warner Music Group, I respectfully ask if you can take a minute and work with us to remove the infringing video from YouTube.

I understand how weird this all sounds. Believe me, it’s weird for me, too. I graduated from Cornell Law School in June 2012. I was out of work for nine months before I started this job in March. I have credit card debt that totals more than what Zillow has your house listed for. I have a studio apartment and I walk to work because I can’t afford car insurance.

When I was hired, I was told I would be working on an innovative project involving social media and data mining and intellectual property law. That turned out to be using Facebook to track people down and and make them take down birthday videos on behalf of a faceless multi-billion dollar corporate entity.

I am not real thrilled about being the guy who keeps people from posting videos online of happy family celebrations just because they’re singing a song that just happens to be copyrighted by a large media conglomerate. My first day on this project, I asked whether this was a good use of my time, or anybody’s time. The answer I got back was that if Warner Music Group doesn’t prosecute every infringing use of the song that it finds, other media companies will be able to argue that the song is now in the public domain, and Warner won’t be able to charge five thousand dollars to people who want to use “Happy Birthday to You” in their movies and TV shows. It’s a decent legal argument, even if it sounds more than a little ridiculous.

I have to be honest, though. I don’t think your mom did anything wrong here. I think it’s morally dubious to continue a copyright on what’s basically a nineteenth-century folk song. Even if it’s still copyrightable, I think you can still argue “fair use” and there’s not a jury in this country that will disagree. I think it’s wrong that a huge company employs lawyers to try to intimidate people to get their way, even on something so small and inconsequential like a video that’s been seen by eighteen people, tops, and has just three comments, all about Singaporean foreign exchange trading.

Then I think about what my student loan payments are, and how hard it will be to ever get a house if I don’t keep them up.

That’s why I’m writing this e-mail, instead of a stiff and boring cease-and-desist letter. I figure you understand. You were out of work for most of 2010, right? You know what the economy is like. And you seem like a nice guy. Your kids look very cute, and I’m sure they will want to see the video of their great-grandmother one day.

What I can do for you is this. If you’re OK with it, I can send a note to my contact at YouTube that you’ve authorized removing the infringing video, and then I’ll personally burn you a copy on Blu-Ray. You don’t have to do anything other than give your permission. If that works for you, I’ll take care of it and you won’t have to worry about defending a lawsuit against you in your role as executor of your mom’s estate filed by Warner Music Group in the United States District Court for the District of Delaware. Because I already have that kind of roughed out.

Not to sound all lawyerly or anything, but I need to hear back from you by the end of next week. If you’ll excuse me, some guy just posted a video to Facebook of his kid singing “Hooked On a Feeling,” and even though it’s majorly cute, I have to tell him to take it down, too, because my entire job seems to be making people afraid of the things that should make them happy.

Cordially,

Ethan Randall

Andrews, McClellan & Patterson

2100 N. Walnut Street

Wilmington, DE 19801

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